United States District Court, E.D. Missouri, Eastern Division
KENNETH D. PARKER, Petitioner,
J.T. SHARTLE, Respondent.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's response to
the order to show cause. Having carefully reviewed
petitioner's response, the Court concludes that his
arguments as to timeliness are without merit, and that the
instant action is time-barred under 28 U.S.C. § 2244.
August 12, 2013, petitioner pled guilty to robbery in the
first degree and robbery in the second degree. On August 22,
2013, petitioner was sentenced to ten years imprisonment on
both counts, concurrent to one another and concurrent to
three federal sentences in United States v. Parker,
Nos. 2:12CR4005 FJG, 2:12CR4029 FJG and 2:10CR4055 FJG
(W.D.Mo.). See State v. Parker, No.
10SL-CR08721-01 (21st Judicial Circuit, St. Louis
County). Petitioner's conviction and sentence were
affirmed on direct appeal on May 7, 2013. See Parker v.
State, No.ED101566 (Mo.Ct.App.).
failed to file any motions for post-conviction relief,
although he did file a state habeas corpus motion, pursuant
to Mo.Sup.Ct.R.91 on June 27, 2016, seeking to have his
conviction and sentence overturned. See Parker v.
State, No. 16SL-CC02838 (21st Judicial
Circuit, St. Louis County). The motion was denied without a
hearing on August 4, 2016. Id.
filed the instant petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 by placing his application for writ
in the prison mailing system on March 27, 2017.
to 28 U.S.C. § 2244(d)(1)(A), a petitioner has one year
from the date his judgment of conviction becomes final within
which to file a petition for writ of habeas corpus. Where, as
here, a Missouri petitioner does not seek transfer to the
Missouri Supreme Court after direct appeal, his judgment
becomes final upon expiration of the time within which to
seek such discretionary review, that is, fifteen days after
the court of appeals issues its opinion. Gonzalez v.
Thaler, 132 S.Ct. 641 (2012); Mo. S.Ct. R. 83.02.
Accordingly, petitioner's judgment of On March 30, 2012,
Case No. 2:12CR4029 FJG (W.D.Mo), was transferred from the
District of Oregon to the Western District of Missouri for
entry of a guilty plea and sentencing. Petitioner entered a
guilty plea to three counts of bank robbery on July 30, 2012,
and he was sentenced by the District Court conviction became
final on May 22, 2014; fifteen (15) days after the Missouri
Court of Appeals affirmed his conviction on direct appeal.
Thus, petitioner was almost three years late in filing the
instant action in this Court.
response to the Order to Show Cause, petitioner once again
asserts that his habeas petition is timely because a new rule
of constitutional law was amended by the Supreme Court
effecting petitioner's conviction. Specifically, he
claims that he is “serving a state sentence where a
hypothetical approach was used to convict [him of robbery] in
light of the holding in Johnson v. United States,
135 S.Ct. 2551 (2015).”
stated in the Court's December 28, 2017 Memorandum and
Order, the holding espoused in Johnson does not
apply to petitioner's state court conviction.
Johnson did not review Missouri's State criminal
statutes such that it would be applicable to petitioner's
state court robbery conviction in this action, and petitioner
has not cited to any case law supporting his position.
petitioner has failed to give support to his position why his
untimeliness should be excused, the Court must dismiss the
petition under 28 U.S.C. § 2244 as time-barred.
IT IS HEREBY ORDERED that that
petitioner's amended application for writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254 is
DENIED AND DISMISSED as time-barred. Rule 4
of the Rules Governing Habeas Corpus Proceedings.
IS FURTHER ORDERED that petitioner's motion for
order to show cause [Doc. #20] is DENIED.
IS FURTHER ORDERED that no certificate of